Both states have now enacted laws eliminating judges' power to impose a death sentence except based on factual findings or recommendations from a jury. Alabama's new governor, Kay Ivey, signed a bill repealing the state's judicial override procedure earlier this month [April 11] just one day after taking over following the resignation of her sex scandal-plagued predecessor, Robert Bentley.
Florida changed its law in March 2016 to eliminate a judge's power to impose a death sentence without input from the trial jury. The change came three months after the Supreme Court ruled in Hurst v. Florida that the state's procedure ran afoul of a decade-long line of precedents generally limiting a judge's power to make factual findings needed to increase a defendant's sentence.
Sotomayor authored the 8-1 decision in the Florida case, but she had first spoken out against judge-imposed death sentences in an Alabama case two Supreme Court terms earlier. In Woodward v. Alabama, Sotomayor wrote an impassioned dissenting opinion
from the court's refusal in November 2013 to consider an Alabama death row inmate's challenge to the judicial override procedure.
A judge had sentenced Mario Dion Woodward to death for the killing of a Montgomery police officer, but in the face of an 8-4 jury recommendation that he be spared the death penalty and sentenced to life imprisonment instead. In her opinion, Sotomayor noted that Alabama was the only state within the previous decade where judges had actually imposed death sentences in the face of contrary verdicts.
Alabama judges had actually made somewhat frequent use of this power, Sotomayor noted. She listed in an appendix the 95 defendants sentenced to death by Alabama judges after contrary sentencing recommendations by juries. By contrast, Alabama judges had overridden jury-recommended death sentences only nine times. And Sotomayor pointed out that the number of judge-imposed death sentences appeared to spike in election seasons. One judge, she noted, had noted in his campaign literature the six defendants he had sentenced to death, including one that the jury had recommended be given a life sentence instead.
Sotomayor was joined in her dissent by Justice Stephen G. Breyer, but not by the court's other two liberal justices: Ruth Bader Ginsburg and Elena Kagan. She acknowledged in her opinion that the Supreme Court had previously upheld Florida's judicial override procedure in capital cases.
Florida had once led the nation in what Sotomayor called "life-to-death overrides," with 89 in the 1980s compared to 30 in Alabama and six in Indiana. By the 1990s, Alabama had taken the lead with 44 compared to 26 in Florida and four in Indiana. After 2000, Alabama stood alone with 26 life-to-death overrides; in the only other case, in Delaware, the judge-imposed death sentence was reduced on appeal to a life term.
Sotomayor achieved her goal in March 2015 when the court agreed to hear a new Florida case challenging that state's judicial override procedure in capital cases. The case was argued early in the new term, in October 2015, and ended with a nearly unanimous decision overruling the previous decisions upholding Florida's procedure. "Time and subsequent cases have washed away the logic of [the earlier decisions]," Sotomayor wrote. As the lone dissenter, Justice Samuel A. Alito Jr. argued that the "advisory" role played by the jury under Florida law satisfied the line of precedents requiring juries not judges to make factual findings needed to increase a defendant's sentence.
Florida passed its new law three months later to eliminate judges' power to impose death sentences unless recommended by at least a 10-2 jury vote. The writing appeared to be on the wall for Alabama's judicial override procedure after the court sent an Alabama case back to the state's court to consider the impact of its decision in Hurst. The Alabama legislature completed approval of a bill to repeal the judicial override provision on April 4; Bentley had promised to sign it, but it fell to Ivey to sign the measure after Bentley's resignation.
Robert Dunham, executive director of the Washington-based Death Penalty Information Center, called the repeal "significant." He noted to the Birmingham Times that historically judicial overrides had been seen as a safeguard against runaway juries, but that in contemporary times the power "has been used to impose death sentences against the will of the community and has been disproportionately used in election years in cases of white victims and African am defendants."
Today, Sotomayor has become the court's most vocal critic of the lethal injection procedures currently used in death penalty states. She spoke for the four liberal justices in dissenting from the decision in Glossip v. Gross (2015) upholding the current three-step lethal injection procedure.
Sotomayor reiterated her points from that dissent as recently as Thursday night [April 19] in voting to grant stays of executions to the Arkansas inmates seeking to halt the state's plans to carry out eight executions within a span of two weeks. With one significant reform to her credit, Sotomayor can be expected to keep up the pressure on this issue as well.